Truth v. Myth

Truth v. Myth: Trump executive order on diversity training “merits” criticism

Posted on November 12, 2020. Filed under: Civil Rights, Politics, Truth v. Myth | Tags: , , , , , |

Hello and welcome to part 3 of our series on the Trump Administration’s September 22, 2020 Executive Order on Combating Race and Sex Stereotyping. You can find the official White House version of this executive order here. Here we

The Order picks up from where it left off–claiming that acknowledging the existence of racism is racist (see part 2)–by describing this acknowledgement as coercion:

Executive departments and agencies (agencies), our Uniformed Services, Federal contractors, and Federal grant recipients should, of course, continue to foster environments devoid of hostility grounded in race, sex, and other federally protected characteristics. Training employees to create an inclusive workplace is appropriate and beneficial. The Federal Government is, and must always be, committed to the fair and equal treatment of all individuals before the law.

But training like that discussed above perpetuates racial stereotypes and division and can use subtle coercive pressure to ensure conformity of viewpoint. Such ideas may be fashionable in the academy, but they have no place in programs and activities supported by Federal taxpayer dollars. Research also suggests that blame-focused diversity training reinforces biases and decreases opportunities for minorities.

–We can train people to create an inclusive workplace basic on fair and equal treatment of all individual before the law, but we cannot define any group as failing to be inclusive, fair and equal. We must leave that blank. It is racist to openly acknowledge that in the United States, the racism that is sanctioned by generations of institutional discrimination, including laws and mores that approve white racism against black people, Asian people, Latinx people, Native American people, or any other race group.

This would be akin to offering training to prevent homophobic discrimination that refused to say that heterosexual people are the ones allowed, even encouraged, to practice this discrimination, and therefore the source of the problem. We should, apparently, leave the door open to the idea that gay people discriminating against gay people is the longstanding problem.

And isn’t diversity training all about ensuring conformity of action, if not viewpoint? You may not reach everyone who is prejudiced, but you have to ensure that they walk out of the room knowing that prejudice will be punished. And you do hope that you will change minds. Isn’t the goal of the U.S. Constitution to use subtle and not-so-subtle coercive pressure to get millions of people to commit to being one nation, indivisible? Coercive pressure can be exerted for good or for evil. We use coercive pressure to teach children not to touch the hot stove.

Another dog-whistle for conservatives: linking actual diversity training that names names to colleges and universities (“the academy”). Conservatives believe that higher ed is exclusively neo-liberal, so attaching real diversity training to them is effective for that audience.

Finally, there is research that finds that diversity training can be unfortunately counter-productive in that people who complete it feel that they are now racism-proof because of their new knowledge, and therefore anything they do can never be racist, and they never have to think about it again. This does not mean that we cancel diversity training, but that we improve it to address this conundrum.

Our Federal civil service system is based on merit principles. These principles, codified at 5 U.S.C. 2301, call for all employees to “receive fair and equitable treatment in all aspects of personnel management without regard to” race or sex “and with proper regard for their . . . constitutional rights.” Instructing Federal employees that treating individuals on the basis of individual merit is racist or sexist directly undermines our Merit System Principles and impairs the efficiency of the Federal service. Similarly, our Uniformed Services should not teach our heroic men and women in uniform the lie that the country for which they are willing to die is fundamentally racist. Such teachings could directly threaten the cohesion and effectiveness of our Uniformed Services.

–We must begin by asking, what about this Administration’s determined and open effort over the past four years to directly threaten every expression of and mechanism to maintain this nation’s democracy?

But aside from that, here we find once more the argument that the merit system is actually a level playing field. It is not. As we said in Part 2, “That’s why pushing “color blindness” and “meritocracy” are indeed tools of racism: they ask people to assume a level playing field that does not exist. Meritocracy means ‘we all start with the same opportunities, and those who take advantage of them and work hard will succeed.’ But we don’t all start with the same opportunities, the same equality of opportunity, as the Founders put it, and therefore meritocracy is not truly possible.”

And that’s why we must tell people that, unless we are working hard and deliberately and honestly to address racism and sexism, treating individuals on the basis of individual merit really is racist or sexist, because we take a system that ensures the success of whites and men and then say “Well, I guess blacks and women don’t succeed because they just aren’t as talented as white men. They had a fair chance, and they failed.”

Such activities also promote division and inefficiency when carried out by Federal contractors. The Federal Government has long prohibited Federal contractors from engaging in race or sex discrimination and required contractors to take affirmative action to ensure that such discrimination does not occur. The participation of contractors’ employees in training that promotes race or sex stereotyping or scapegoating similarly undermines efficiency in Federal contracting. Such requirements promote divisiveness in the workplace and distract from the pursuit of excellence and collaborative achievements in public administration.

–Yes, there are rules on the books to prevent federal contracts from being granted to contractors that don’t have a fair and equitable workforce or policies. But many studies over many years show that those rules are regularly flouted. Even if they weren’t, and every federal contractor was fully anti-racist and anti-sexist, wouldn’t that be the likely result of decades of diversity training, which is now illegal? How can federal contractors continue that imagined stellar record if they can no longer conduct honest diversity training?

We assume that most people reading this blog–like most people in the world–work in a company or organization. All of these companies experience divisiveness in the workplace. Is the main or only source of this divisiveness diversity training? Probably not. We’d even say definitely not. If we had to make a hypothesis about which causes more divisiveness in the workplace–prejudice or diversity training–we’d say it’s the former.

Therefore, it shall be the policy of the United States not to promote race or sex stereotyping or scapegoating in the Federal workforce or in the Uniformed Services, and not to allow grant funds to be used for these purposes. In addition, Federal contractors will not be permitted to inculcate such views in their employees.

–Here the perverse equation is made baldly clear: honest diversity training that identifies white racism and male sexism is “race or sex stereotyping or scapegoating”. Therefore, there is no more federal funding for any diversity training that identifies white racism or male sexism. Again, while we could see a bad-intentioned person arguing that white people are not the only racists (thus ignoring the specific U.S. context of institutional racism that promotes white people over others), it’s hard to see how they would argue that women are as guilty of sexism as men. Or not; we suppose any group as dedicated to ignoring history and reality as this administration could do it.

Next time: “divisive concepts”…

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Truth v Myth: Trump Executive Order defines fighting racism as racist

Posted on November 6, 2020. Filed under: Civil Rights, Politics, The Founders, Truth v. Myth, What History is For | Tags: , , , , , , , , , , , , |

Welcome to part 2 of our series on the Trump Administration’s September 22, 2020 Executive Order on Combating Race and Sex Stereotyping. You can find the official White House version of this executive order here. Today, we move on to the Order’s misrepresentation of anti-racism as a “destructive ideology.”

This destructive ideology is grounded in misrepresentations of our country’s history and its role in the world. Although presented as new and revolutionary, they resurrect the discredited notions of the nineteenth century’s apologists for slavery who, like President Lincoln’s rival Stephen A. Douglas, maintained that our government “was made on the white basis” “by white men, for the benefit of white men.” Our Founding documents rejected these racialized views of America, which were soundly defeated on the blood-stained battlefields of the Civil War. Yet they are now being repackaged and sold as cutting-edge insights. They are designed to divide us and to prevent us from uniting as one people in pursuit of one common destiny for our great country.

–The duplicity here makes one want to cry out. Here is the pretzel: acknowledging racism at work in America today is actually racist. To bring up race is, somehow, to have a “racialized view” of America, and, beyond that, to bring up racism is to be an apologist for slavery.

Where to begin? Well, perhaps with the common knowledge that fighting racism and working for civil rights is hardly represented as new, revolutionary, or cutting-edge. We’ve been doing this work in this country since 1787, at least, and the association of “civil rights” with “fighting racism against black Americans” has been very much a part of our life as a nation since 1865. Perhaps the author(s) of this order remember the NAACP, SNCC, Martin Luther King, Jr., Malcolm X, Frederick Douglass, Shirley Chisholm, John Lewis, the NACW, and, greatest of them all, Mrs. Ida B. Wells-Barnett. Maybe they can recall the desegregation of Central High in Little Rock, Arkansas. The March on Washington. Brown v. Board of Education. The Great Society. All of these movements, organizations, events, and people of the past 160 years that we all read about at every grade level in our textbooks.

Fighting racism and working for civil rights is also not racist. To claim that fighting racism forces people to think about race, and only race, and therefore is racist, can only be the product of a deep stupidity or a deep evil. It’s very hard to say which would be worse.

Unfortunately, this malign ideology is now migrating from the fringes of American society and threatens to infect core institutions of our country. Instructors and materials teaching that men and members of certain races, as well as our most venerable institutions, are inherently sexist and racist are appearing in workplace diversity trainings across the country, even in components of the Federal Government and among Federal contractors. For example, the Department of the Treasury recently held a seminar that promoted arguments that “virtually all White people, regardless of how ‘woke’ they are, contribute to racism,” and that instructed small group leaders to encourage employees to avoid “narratives” that Americans should “be more color-blind” or “let people’s skills and personalities be what differentiates them.”

–This is more of the same idea that acknowledging race and racism is racist. We should all be allowed to be “color-blind”. This phrase, as used in this Order, represents a false assumption, which is that America, or at least most Americans, are not racist and do not ever made judgments about people based on their race. Therefore, being told to think about race is ruining this paradise by introducing race-based thinking, and therefore, racism.

It’s hard to imagine that many Americans would claim that they are “color-blind.” They might say they themselves are not racist, or that they try not to be. But they wouldn’t claim that they never think about race unless forced to do so by a workplace diversity training. In reality, all people–whatever their race–have racist thoughts and feelings. Most of them know that, and work to fight that human tendency. Some of them know that and don’t care, and some of them know that and deny it. While one might find fault with a diversity training program that singles out white people as racist, when we know that it’s a part of human nature the world over, we are talking about the U.S., where centuries of institutional racism have worked to promote the interests and well-being of white Americans at the expense of black, Latinx, Asian, and Native Americans. So in a U.S. diversity training, the focus will indeed be on how white people can renounce the privileges racism offers them. If white Americans don’t do that, they cannot “let people’s skills and personalities be what differentiates them.”

Training materials from Argonne National Laboratories, a Federal entity, stated that racism “is interwoven into every fabric of America” and described statements like “color blindness” and the “meritocracy” as “actions of bias.”

–Again, the first statement is very familiar to Americans. We spent the last 70 years learning again and again how racism distorts housing, employment, incarceration, health care, and education. You either oppose or support this, but you can’t prove a case for denying it. That’s why pushing “color blindness” and “meritocracy” are indeed tools of racism: they ask people to assume a level playing field that does not exist. Meritocracy means “we all start with the same opportunities, and those who take advantage of them and work hard will succeed.” But we don’t all start with the same opportunities, the same equality of opportunity, as the Founders put it, and therefore meritocracy is not truly possible.

Materials from Sandia National Laboratories, also a Federal entity, for non-minority males stated that an emphasis on “rationality over emotionality” was a characteristic of “white male[s],” and asked those present to “acknowledge” their “privilege” to each other.

–Here the author(s) play into people’s willingness to roll their eyes at “political correctness”. They pull very small quotes from some larger document to prove that Sandia is denigrating white men, representing them in a negative way and, therefore, engaging in what white racists traditionally call “reverse discrimination.” See? they say; Sandia is encouraging racism against white men! Shouldn’t every individual be judged on their actions, not their race? This is pretty unforgivably deceitful. If one group have worked to institutionalize racism, then yes, they participate in racism and benefit from it, even if they’re not fully aware of the full extent of that participation and benefit. It become so normalized that it’s just the fabric of life. Sexism works the same way. Making people aware of the benefit, or privilege, they experience is a first step in teaching the basic lesson that discrimination must be actively opposed, and that can’t happen until it is personally acknowledged. The work doesn’t stop there. Acknowledging one’s own participation in discrimination is just the first step to fighting it, and being part of the solution.

A Smithsonian Institution museum graphic recently claimed that concepts like “[o]bjective, rational linear thinking,” “[h]ard work” being “the key to success,” the “nuclear family,” and belief in a single god are not values that unite Americans of all races but are instead “aspects and assumptions of whiteness.” The museum also stated that “[f]acing your whiteness is hard and can result in feelings of guilt, sadness, confusion, defensiveness, or fear.”

–One of the concepts we learn as we move into adulthood is that words can have many meanings. We learn about codes, and code-switching. We find through personal experience that potentially explosive messages cannot be bluntly stated, but have to be filtered. It’s what we call a “dog whistle” – most people hear nothing, but those who are in the know hear the message.

Well-known examples include “the right kind of people” and “our kind of people”. In the U.S., the words and phrases “patriot,” “real Americans,” “honest, hardworking Americans,” and “middle-class” have been turned into dog-whistles for racism since the 1970s, when the conservative backlash against the civil rights movement and gains of the 1950s and 60s began, and were fully gelled by the Reagan Administration in the 1980s. All of these have become code expressions for “white”, and it was a horribly effective mis-use of meritocracy: start with the false assumption that everyone had the same starting point and resources, and then when racism ensures that people who aren’t white don’t succeed, the only way to explain it is by blaming the non-white people for being lazy, dishonest, and treacherous. If only white Americans succeed, it must be because only whites are hard-working, honest, and patriotic.

And so when the Order complains that the Smithsonian claimed that the phrases “[h]ard work” being “the key to success,” the “nuclear family,” and belief in a single god are not values that unite Americans of all races but are instead “aspects and assumptions of whiteness,” it is pretending that these have not become thoroughly encoded dog-whistles.

We would criticize the Smithsonian–if it is being quoted correctly–for saying that only white people value the nuclear family. Black American families in particular have been targeted for destruction by policies that keep black Americans poor, physically unhealthy, exposed to drug use, and more likely to be sent to prison, all of which prevent nuclear families from forming and/or persisting.

All of this is contrary to the fundamental premises underpinning our Republic: that all individuals are created equal and should be allowed an equal opportunity under the law to pursue happiness and prosper based on individual merit.

–The horrible irony of this statement is clear: acknowledging and fighting the racism that prevents equal opportunity under the law is racist. All anti-racism is anti-American and is itself what is preventing equality for all Americans. And, before we close, let’s all remember that the Declaration of Independence that the Order purports to quote here by using the phrase “pursue happiness” says NOTHING about individual merit:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. 

How does America achieve happiness for all? Is it through assuming a meritocracy? No: Americans achieve this by forming a government that supports happiness for all (“these ends”). And if that government “becomes destructive of these ends,” we the People must alter or abolish it to create a new government built on “such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness”.

That’s how we create and maintain and safeguard happiness in this country. Through the hard work of creating a system of government that does not allow systemic, institutionalized discrimination, and through the hard work of monitoring that government and correcting it if it goes wrong. The Founders knew how hard it would be to keep the government fair and to keep it dedicated to preserving our natural rights. They did not recommend or describe a fantasy about everyone having all the resources and opportunities they needed, like magic, and just taking advantage of them, easy as pie. It’s about rights, not magic.

Next time: define merit

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Truth v. Myth: Trump’s Executive Order on Diversity Education

Posted on October 20, 2020. Filed under: Civil Rights, Civil War, Politics, Truth v. Myth | Tags: , , , , , , , , |

Welcome to the beginning of our series on the Trump Administration’s September 22, 2020 Executive Order on Combating Race and Sex Stereotyping. You can find the official White House version of this executive order here. We’ll be quoting from it extensively as we work our way through this insidious piece of doublespeak.

The title itself is an unapologetic, almost taunting lie: the order purports to combat race and sex stereotyping, but as we’ll see as we work our way through it, the order does just the opposite. The joy that its author(s) feel in twisting the truth is something we’ve come to expect not just from this administration, but from the Internet world it reflects. Let’s move in:

By the authority vested in me as President by the Constitution and the laws of the United States of America… and in order to promote economy and efficiency in Federal contracting, to promote unity in the Federal workforce, and to combat offensive and anti-American race and sex stereotyping and scapegoating, it is hereby ordered as follows:

Section 1. Purpose. From the battlefield of Gettysburg to the bus boycott in Montgomery and the Selma-to-Montgomery marches, heroic Americans have valiantly risked their lives to ensure that their children would grow up in a Nation living out its creed, expressed in the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal.” It was this belief in the inherent equality of every individual that inspired the Founding generation to risk their lives, their fortunes, and their sacred honor to establish a new Nation, unique among the countries of the world. President Abraham Lincoln understood that this belief is “the electric cord” that “links the hearts of patriotic and liberty-loving” people, no matter their race or country of origin. It is the belief that inspired the heroic black soldiers of the 54th Massachusetts Infantry Regiment to defend that same Union at great cost in the Civil War. And it is what inspired Dr. Martin Luther King, Jr., to dream that his children would one day “not be judged by the color of their skin but by the content of their character.”

Thanks to the courage and sacrifice of our forebears, America has made significant progress toward realization of our national creed, particularly in the 57 years since Dr. King shared his dream with the country.

Today, however, many people are pushing a different vision of America that is grounded in hierarchies based on collective social and political identities rather than in the inherent and equal dignity of every person as an individual. This ideology is rooted in the pernicious and false belief that America is an irredeemably racist and sexist country; that some people, simply on account of their race or sex, are oppressors; and that racial and sexual identities are more important than our common status as human beings and Americans.

–The first paragraph of Section 1 quotes from our Declaration of Independence, Abraham Lincoln, and Dr. King, and it’s wonderful to read their inspiring language. The abrupt, jolting switch to the determinedly hate-filled, divisive language of the administration author(s) in the third paragraph is, then, particularly painful and annoying. It reads like a draft essay by a high schooler: “today”, “many” people are “pushing” a different version of America. Whether it’s an inability or unwillingness to match the concentrated, formal yet powerful language of the earlier Americans they quote is unclear and, in the end, unimportant, as both inability and unwillingness do the same damage in the end: reducing the level of the conversation to “good” and “bad” people.

This continues in the paragraph, as the idea of acknowledging social hierarchies, and institutional racism and sexism, is “bad”. It’s “bad” because, apparently, the only way this is done is by slandering America as “irredeemable”, and slandering innocent white male Americans as “oppressors”, “simply” on account of their race or sex.

Ah, the scourge of “reverse racism,” as it’s called, against white people So much worse, its proponents would have you believe, than racism against non-white people. Turning the language of civil rights on its head to support “reverse racism” is deliberately harmful. It attempts to erase a long history of people–like Lincoln and King–calling for all Americans to plainly acknowledge, in writing, in spoken words, in public, the institutional discrimination derailing our nation by thwarting our commitment to liberty and justice for all. This call is not new, it’s not something only happening today, and yes, it is supposed to create a “different version of America” –a better version that lives up to our founding principles.

This commonly known history, however, is under attack throughout the Order. As we will see in our next post, the Order makes no effort at nuance: its message is that white Americans, particularly white American males, are being crucified on the cross of “political correctness” and the “pernicious” pushing of a campaign of reverse racism that threatens our very foundations as a nation.

Next time: the “malign ideology” of civil rights

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Romney, Dred Scott, and the Supreme Court

Posted on September 23, 2020. Filed under: Politics, The Founders, Truth v. Myth, U.S. Constitution | Tags: , , , , , , , , , , |

In March 2016, President Barack Obama moved to fill a Supreme Court vacancy created by the death of Justice Antonin Scalia. Republican Senators, in the majority, refused to hold hearings for Obama’s nominee to replace Scalia, Merrick Garland. The Republicans’ claim was that 2016 was an election year, Obama was finishing his second term and clearly could not run again, so the Supreme Court should not have an empty seat filled by someone who wasn’t going to be president after 2016. The new president, whomever that might be after the November 2016 election, should get to fill the seat.

This was an argument never before advanced in the Senate. Think about what that argument is: why should Supreme Court Justices be chosen only by an incoming president? The clear message is that presidents should get to choose Justices who agree with them politically–that a president should be able to shape the Court to do his political bidding. A president shouldn’t have to resign himself to fighting with a Court that doesn’t toe his line.

This is deeply un-American. In the United States, the judiciary is meant to be objective. Judges and Justices are not elected because they are not meant to reflect popular sentiment. As we say in one of our many posts on the judiciary and tyranny of the majority,

The famous commentator on American democracy, Alexis de Tocqueville, talked a great deal in his books Democracy in America about the tyranny of the majority. This is when majority rule–the basis of democracy–ends up perverting democracy by forcing injustice on the minority of the public.

For example, slavery was an example of the tyranny of the majority. Most Americans in the slave era were white and free. White and free people were the majority, and they used their majority power to keep slavery from being abolished by the minority of Americans who wanted to abolish it. The rights of black Americans were trampled by the tyranny of the majority.

Before Brown v. Board of Education in 1954, the majority of Americans were fine with segregated schools. They used their majority power to oppress the minority of Americans who were black, or who were white and wanted desegregation.

In each example, the majority is imposing and enforcing injustice which is incompatible with democracy. They are tyrannizing rather than governing.

The judiciary was created to break this grip of majority tyranny. The legislature–Congress–cannot usually break majority tyranny because it is made up of people popularly elected by the majority. But the appointed judiciary can break majority tyranny because its sole job is not to reflect the wishes of the people but to interpret the Constitution.

If the judiciary finds that a law made by the legislature perverts democracy and imposes the tyranny of the majority, it can and must strike that law down. This is what happened in California. The court found that although the majority of Californians (as evidenced by a previous referendum) had voted to ban gay marriage, that majority was enforcing and imposing injustice on the minority. So the court found the ban unconstitutional.

This is not beyond the scope of the judiciary, it’s exactly what it is meant to do.

President Obama’s candidate was blocked by Senate Republicans nine months before the November 2016 election as “too close” to the election. Now, in September 2020, less than two months before the election, Senate Republicans are united in calling for President Trump to nominate a new Justice so the Senate can hold hearings and get the nominee confirmed before the election on November 3.

At first, Republican Utah Senator Mitt Romney seemed to waver from this position. But then he toed the line using words that echo those of a terrible moment of failure in our democracy: the Dred Scott decision.

Here’s a quick summary of this 1857 case from our series on Dred Scott:

In 1857, the United States Supreme Court, led by Chief Justice Roger B. Taney, declared in its Dred Scott v. Sanford decision that black Americans, whether they were considered free people or enslaved, were not citizens of the U.S. and could never become citizens because of their race. Dred Scott was an enslaved man who lived in Missouri. The man enslaving him took Scott and Scott’s wife Harriet north to the free states of Illinois and Wisconsin, then took them back to slave Missouri. Scott claimed that once he and Harriet had crossed the border into free states, they had become free, as slavery was not allowed in those states. Once a person has gained free status, whether deliberate or not, he or she cannot be returned to slavery.

The Court found against Scott.. but not really. In reality, Chief Justice Taney declared in the majority decision he wrote that the Court actually decided that it should not even have heard the case at all. As we say in our analysis of Taney’s summary,

Taney began the opinion by citing precedent for upholding slavery, pointing out that slavery was written into U.S. law by the Founders. He then explained why the Founders were racist (as we would say; Taney certainly did not put it this way), and thought black people were inferior, and took this to its logical conclusion—if black Americans are ignorant and cannot understand law, they cannot be made citizens because they cannot uphold democracy. Therefore, the Founders did not accidentally omit black Americans from the definition of citizen, but consciously acknowledged that black Americans could not function as citizens. Thus, they did not ever mean for the definition of  citizen to be changed to include black Americans.

We see that Taney is actually avoiding ruling on Dred Scott and slavery at all; he is refusing to involve his Court in the slavery debate because he believes Congress should be the sole author of slave law. Taney says the Court’s hands are tied: enslaved people are miserable, Taney says, and the people enslaving them are despotic, but the law is the law.

Why not just amend the Constitution if slavery is wrong? Overturn precedent—the Court can do that. Here, in his conclusion, Taney will erase that possibility as well. Again, these are excerpts, and not the full text of the opinion, and all italics are mine:

“No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.”

Taney rules out the possibility that Americans realizing that race-based slavery is immoral (a change in “public opinion or feeling”) should ever lead the Court to overturn established law and legal precedent. Why not just amend the Constitution if we’re not all agreed now, in 1857, that slavery is justified because black people are inferior? Here’s Taney’s answer:

“…while it remains unaltered, it must be construed now as it was understood at the time of its adoption… Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes.”

In other words, as we said then, “Taney is saying that the Constitution can be changed (altered), but until it is changed, it must be obeyed (“it must be construed now as it was at the time of its adoption”). So yes, you can change the Constitution if you deem it unjust, but until you change it you can’t change it. And he’s not going to change it… because it hasn’t been changed yet.”

Taney concludes the majority opinion by saying that since black Americans are not citizens, Scott should never have appeared in any U.S. court, and so the Circuit Court was wrong to hear the case and issue a ruling, and the case is now dismissed.

Where does Mitt Romney come into this awful equation? On September 22, 2020, he was interviewed on camera about why he supported hearings for a Republican Supreme Court nominee less than 6 weeks before a presidential election but didn’t support them for a Democratic nominee 9 months before an election. Here is a transcription of his response:

REPORTER: Back in 2016 the message was “let the voters decide” – why not now?

ROMNEY: At this stage it’s appropriate to look at the Constitution and to look at the precedent that has existed over—well, since the beginning of our country’s history. In a circumstance where a nominee of a president is from a different political party than the Senate, then, more often than not, the Senate does not confirm. So the Garland decision was consistent with that. On the other hand, when there’s a nominee of a party that is in the same party as the Senate, then typically they do confirm. So the Garland decision was consistent with that, and the decision to proceed now, with the President Trump’s nominee, is also consistent with history. I came down on the side of the Constitution and precedent, as I’ve studied it, and make the decision on that basis.

…I prefer choosing those folks who are, if you will, strict constructionists, meaning that they look at the law itself, and the Constitution, rather than looking into the sky and pulling out ideas that they think may be more appropriate than either the law or the Constitution.

It’s also appropriate for a nation that is, if you will, center-right, to have a court which reflects center-right points of view, which again are not changing the law from what it states but instead following the law and the Constitution.

Let’s review:

Taney, 1857: “…while it remains unaltered, it must be construed now as it was understood at the time of its adoption… Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes.”

Romney, 2020: “I prefer choosing those folks who are, if you will, strict constructionists, meaning that they look at the law itself, and the Constitution, rather than looking into the sky and pulling out ideas that they think may be more appropriate than either the law or the Constitution.”

Both men equate finding the Constitution to be unjust with popular fads or opinions. The implication is that no reasonable, far-sighted, intelligent person would ever find the Constitution to be unjust, so anyone who wants to change it is a nut who probably has lots of crazy ideas. The judiciary will not stoop to that. This despite the clear role laid out in the Constitution for the judicial branch to analyze U.S. laws and amend any that are unjust.

But it’s even worse in Romney’s case, as the Constitution says nothing about this matter. There is no law about how to proceed with Supreme Court nominations to uphold via precedent or to change via the judiciary. Let’s fact-check Romney:

At this stage it’s appropriate to look at the Constitution and to look at the precedent that has existed over—well, since the beginning of our country’s history. In a circumstance where a nominee of a president is from a different political party than the Senate, then, more often than not, the Senate does not confirm.

What does the Constitution really say? Article 2, Section 2, Clause 2:

He [the president] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

There is nothing in the Constitution that says that “in a circumstance where a nominee of a president is from a different political party than the Senate, then, more often than not, the Senate does not confirm.” So there is not Constitutional or legal precedent for this. In fact, a quick scan of presidential nominations to the Court from Washington to Obama shows that there were completely extra-legal “senatorial courtesies” that Senators developed and observed, like letting Senators from Georgia, for example, have the final word on evaluating a Court nominee from Georgia.

We also find that most presidents who had one nominee rejected were able to successfully nominate another person who was confirmed. The idea that anyone a Republican president nominated would be rejected out of hand by Democratic Senators is a myth.

In the 20th century, we do find a growing trend of nominees being rejected on ethical grounds. Harding, Hoover, Eisenhower, Nixon, and Reagan all had candidates rejected, refused hearings, or withdrawn for ethical reasons. Sometimes this was for the right reasons–Hoover’s candidate John Parker was opposed for his anti-labor and racist beliefs. Sometimes it was for the wrong reasons–Eisenhower’s candidate John Marshall Harlan II was rejected for his “ultra-liberal” positions. But we often find that someone who was rejected once was later confirmed–this happened with Harding and Eisenhower in the 20th century.

Nowhere in the Constitution does it say that a sitting president cannot get a hearing for their Supreme Court nominee. There is no precedent for refusing the candidate of a sitting president a hearing during an election year. If we go down this road, we invite the possibility of saying that only a president whose party is in the majority in the Senate can nominate a candidate and get a hearing. This is not our democracy.

Back to Romney and his defense of “precedent” (even when there is none):

since the beginning of our country’s history… In a circumstance where a nominee of a president is from a different political party than the Senate, then, more often than not, the Senate does not confirm. So the Garland decision was consistent with that. On the other hand, when there’s a nominee of a party that is in the same party as the Senate, then typically they do confirm. So the Garland decision was consistent with that, and the decision to proceed now, with the President Trump’s nominee, is also consistent with history. I came down on the side of the Constitution and precedent, as I’ve studied it, and make the decision on that basis.

Continuing an error–in this case, allowing partisanship to thwart the purpose of the judiciary as a whole and the composition of our highest court in particular–is justified, for Romney, because the error is longstanding. Doing the wrong thing often enough transforms the error into a precedent that must be upheld–that is, into the right thing to do. This is a solipsism: the Garland decision was consistent with other unjust decisions so the Garland decision conforms to unjust precedent so I will follow unjust precedent since others have before me. He has not studied this, or he would know that the Constitution has no role here. To make a decision to continue an error is not a high-minded, lonely stand for justice.

When Romney says “I prefer choosing those folks who are, if you will, strict constructionists, meaning that they look at the law itself, and the Constitution, rather than looking into the sky and pulling out ideas that they think may be more appropriate than either the law or the Constitution”, he is insulting anyone who believes the Constitution can or should be amended. He is also channeling Taney in the purest way. Compare Romney’s statement to Taney’s:

No one, we presume, supposes that any change in public opinion or feeling… in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted… while it remains unaltered, it must be construed now as it was understood at the time of its adoption… Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes.

Finally, it is not, as Romney says, “appropriate for a nation that is, if you will, center-right, to have a court which reflects center-right points of view, which again are not changing the law from what it states but instead following the law and the Constitution.” The whole point of the judiciary, as we began by stating, is to adhere objectively to the principles in our Constitution–and its amendments--to ensure liberty and justice for all, and not to follow the will of the majority, support one political party or another, or say “the Constitution is perfect and should never be changed.”

There are many ill omens in 2020 that lead the historian to draw parallels to the precarious state our nation was in on the eve of the Civil War. This statement from Romney, and the anti-democratic, anti-American partisan perversion of the Supreme Court nomination process, is one of them.

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Confederate monuments fall, America rises

Posted on June 12, 2020. Filed under: Civil War, Politics, Slavery, Truth v. Myth, What History is For | Tags: , , , , |

It’s amazing that the sudden removal of so many Confederate war monuments is just a footnote in this Spring’s news. The long and awful battles to remove these monuments to slavery and hatred are suddenly resolved, and it seems like an afterthought.

But all Americans who love liberty and justice for all are happy to hear it. We will pull from two previous posts, Confederate Monuments and the cult of the Lost Cause, and Pro-Confederate is Anti-American to celebrate, and contribute momentum to, this moment.

First, from Confederate Monuments and the cult of the Lost Cause:

There’s a great article from Smithsonian, by New Orleans mayor Mitch Landrieu, called “How I Learned About the Cult of the Lost Cause,” which delineates the real reason so many Confederate monuments were put up in this country, both just after the Civil War and in the 1950s and 60s. One application for federal funding to preserve three Confederate statues as historically important specifically states that the statues commemorate the Cult of the Lost Cause:

“The Cult of the Lost Cause had its roots in the Southern search for justification and the need to find a substitute for victory in the Civil War. In attempting to deal with defeat, Southerners created an image of the war as a great heroic epic. A major theme of the Cult of the Lost Cause was the clash of two civilizations, one inferior to the other. The North, “invigorated by constant struggle with nature, had become materialistic, grasping for wealth and power.” The South had a “more generous climate” which had led to a finer society based upon “veracity and honor in man, chastity and fidelity in women.” Like tragic heroes, Southerners had waged a noble but doomed struggle to preserve their superior civilization. There was an element of chivalry in the way the South had fought, achieving noteworthy victories against staggering odds. This was the “Lost Cause” as the late nineteenth century saw it, and a whole generation of Southerners set about glorifying and celebrating it.”

It’s very odd that this clear-eyed assessment of the Lost Cause as a cult and therefore a myth was successfully used to justify maintaining three Confederate statues in Louisiana. One would think that the goal of preserving acknowledged racist propaganda would be recognized as out of step with real American founding principles.

The only thing we would add is that Landrieu mentions the fact that Confederate memorials were put up in the North as well as the South. This is true; it happened directly after the war as part of an attempt to heal the breach and offer a socio-political olive branch to the South. But that misguided effort quickly died away in the North, while statues continued to go up regularly and in abundance in the former Confederacy.

 

And now from Pro-Confederate is Anti-American:

No need to do much more than to point you to James Loewen’s frank article: Why do people believe myths about the Confederacy?

But we will go ahead and also point you to our own posts on this topic: Amazing Fact: The Civil War was fought over slaveryWhat made the north and south different before the Civil War?, and Slavery leads to secession, secession leads to war.

The Confederate States of America were founded with the sole purpose of perpetuating black slavery. There is nothing heroic in that. The men who created the Confederacy did not care about states’ rights—they had repeatedly demanded that states’ rights be trampled by forcing northern states that had abolished slavery to enforce the Fugitive Slave Act, by going into territories and voting that they enter the Union as slave states even though they were not residents of that territory, by terrorizing residents who wanted to vote anti-slavery, and by taking enslaved people into free states and forcing the free state residents to endure that slavery.

Soldiers of the Confederacy were not heroes. The old argument that most of them were poor and were not slaveholders is meaningless: they fought to protect their land and their governments, which meant protecting the slave system and the slave aristocracy that governed their land. If they won the war, those poor, non-slaveholding soldiers would have allowed slavery to keep going. They knew that. You can’t cherry-pick motives and focus on the heartwarming “they fought to keep their families safe” motive and ignore the chilling “the soldiers didn’t care if black Americans were enslaved as long as they kept their land” motive.

Secession was not allowed in the Constitution. There is no place in it that makes secession legal. So founding the Confederacy was the most anti-American action in our history.

It’s high time we became as tough on Confederacy worship as the Confederates were on America, democracy, and states’ rights.

 

 

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BLM protests are patriotic

Posted on June 9, 2020. Filed under: American history, Bill of Rights, Politics, Revolutionary War, The Founders, Truth v. Myth, U.S. Constitution, What History is For | Tags: , , , , , , , , , , , , |

We’ve noticed this week that one of our posts–The Boston Tea Party and a tradition of violence–which we posted back on November 21, 2011, has been getting a lot of traffic. We wonder if this is connected with people searching for historical justifications or damnations of public protest currently taking place in America. Let us say unequivocally that nonviolent protest in the name of liberty and justice for all is one of the greatest acts of patriotism that any person, anywhere, including the United States of America, can make. Black Lives Matter protestors are patriotic Americans desperately trying to save this country from those un-American citizens who would turn it into a race-based dictatorship.

We at the HP are taking part in Black Lives Matter protests nightly in our towns. It’s the very least we can do to fight against those who want an end to America as a land of liberty and justice for all.

The U.S. is founded on the Third Article of the Bill of Rights added to our Constitution, which says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Peaceful protests (“assemblies”) which demand change from our government (“petition the government for a redress of grievances”) are not just some kind of inheritance from the past. The right to peaceful protest against injustice is fundamental to our form of government, and our rights as citizens.

Gradually since the 1980s, and the presidency of Ronald Reagan, we’ve built a harmful paradox in America: the government is at once “the problem,” and needs to be utterly dismantled so people can be free of taxes and laws they don’t like; but at the same time, people who protest publicly against the government are ridiculed or threatened as dangerous outliers.

To be frank, it’s a specific kind of protestor who is threatened as un-American: the non-white, non-male, non-Christian, and/or non-straight protestor. As racist, sexist, and homophobic people attempt to make white straight Christian male the definition of “American”, the only American who has the right to protest because he’s protesting all those other “non” people, we find that neo-Nazi marchers are basically unopposed by police while everyone else (the “nons”) are met with military-level shows of force.

These anti-“non” protestors usually claim that they are the majority and therefore have the right of tyranny over everyone else. This claim grows in ferocity as white men steadily slip into the minority of the U.S. population, and is transformed into a call for oligarchy–government by the minority, oppressing the majority.

Just two months after the birth of this blog, in May 2008, we posted the first version of our tyranny of the majority post, in which we pointed out that our three-part government is set up specifically to prevent tyranny of the majority by empowering the judiciary to protect and uphold the rights of minority citizens. We’ve reposted this almost a dozen times since then, as gay marriage was legalized in individual states, and as Americans were heard wondering why the courts “pass laws” they don’t like. America is not an oligarchy. It’s a democracy. That’s the torch you must accept as it is passed to you if you want to claim that you are patriotic.

So when we see people searching out our post on the riots that characterized pre-Revolution Boston, we feel uneasy because we fear that our condemnation of those riots will be used to condemn Black Lives Matter protests. It should not be. Here’s why.

As we put it in our post,

When you read about the events leading up to the Tea Party, you quickly become a little uncomfortable with the readiness of Bostonians to physically attack people and destroy their property as the first means to their ends.

…This willingness to use violence got mixed reviews from patriot leaders. Some felt it was justifiable because it was in protest of an unfair government. Others felt it gave the patriot cause a bad name, and attracted lowlifes who weren’t fighting for democracy. All of them knew it had to be carefully managed to keep it under control: at any moment a mob nominally in the service of colonial leaders could become a force that knew no loyalty and could not be controlled by anyone.

It is certainly unsettling for modern-day Americans to read about the tactics our ancestors were ready to use when they believed themselves to be crossed. Mob violence is not something we condone today, and so much of the violence in colonial Boston seems to have been based not in righteous anger but in personal habit and popular tradition that it’s hard to see it as truly patriotic.

Patriot leaders like Samuel Adams knew they would have to keep violence out of their official platform,  disassociating the decisions of the General Court from the purveyors of mob violence. The Tea Party would be a triumph of this difficult position.

The problem with pre-Tea Party Boston was that it relied on mob violence–people tearing down the houses of men who they felt were unjust, throwing bricks at them, pouring hot tar over their naked bodies and covering them with feathers, then forcing them to run through the streets or be beaten. That is mob violence. Those are acts of revenge. They do not further the cause of justice. They can never be actions taken in the name of justice.

Public protest is different from mob violence. Public protest can be violent or non-violent. Violent public protest is just one half-step above mob violence, because it cannot be controlled in a way that promotes justice. It is about revenge, not change.

Non-violent public protest is, by its very nature, controlled to force change rather than take revenge. Building are not burned, people are not beaten. It is the ultimate in democracy, and a legacy given to Americans by their Founders.

Unfortunately, there are always low-lifes who attach themselves to a non-violent protest, wait until it is peacefully ending, then start looting and throwing smoke bombs and forcing violence. Some do this to further their own ends of looting and/or expressing their contempt for human suffering and individual liberty. Some do it to make the protestors–the “nons”–look bad. People who have contempt for, and fear of, liberty and justice for all infiltrate the crowd to destroy the movement.

Those who protest against racism, sexism, homophobia, and religious bigotry are patriotic Americans, and the true inheritors of the American Revolution.

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The Gettysburg Address for 2020

Posted on May 7, 2020. Filed under: Civil Rights, Lincoln, Racism, and Slavery, Truth v. Myth, What History is For | Tags: , , , |

We’ve written about the Gettysburg Address before, and we feel it’s time to do so again. This famous speech by President Lincoln, delivered at the memorial of the Battle of Gettysburg, on one of the battle grounds, is so short that could fit on one side of an index card; just 12 lines on the NPS website devoted to it. Yet it is a magnificent and wide-ranging, all-encompassing call to this nation to never let the standard of liberty and justice for all fall from our hands, no matter what happens.

In these times, nearly eight score years after Lincoln delivered this moving message, we need the power and the pain of the Gettysburg Address to inspire us once again.

P.S. — see our post on the Harrisburg, PA newspaper’s famous dismissal of the GA as “silly remarks” for the full story on Why the Harrisburg Press hated the Gettysburg Address.

 

It shouldn’t be necessary to parse such a short text to fully comprehend its meaning; it shouldn’t even really be possible. But the Gettysburg Address, delivered on November 19, 1863 at the dedication of the Soldiers’ National Cemetery in Gettysburg, Pennsylvania, by President Abraham Lincoln, packs a great deal of meaning into a very few words, and the fact that some of its phrases have become iconic, used liberally in everyday society, has actually blurred some of their meaning.  Let’s go through it, attempting to be as concise as the author was, but knowing we will fail [this article is many times longer than his speech]:

“Fourscore and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty and dedicated to the proposition that all men are created equal.”

–Yes, the first five words may be the most well-known; there’s probably no American alive today over the age of 5 who hasn’t heard those words, usually used in jest, or presented as impenetrable. It’s the one archaic rhetorical flourish Lincoln included. “Score” means 20, so the number is four times 20 plus seven, or 87 years ago. In 1863, that was, of course, 1776, the year the Declaration of Independence was written and signed.

The important thing about that number and that date is how recent it was; just 87 years ago there had been no United States. Older adults in the crowd at Gettysburg had heard their parents’ stories about colonial days, and the Revolutionary War. Their grandparents might never have known independence. So the nation brought forth so recently, conceived in liberty and dedicated to the proposition that all men are created equal, possessed all the vulnerability of youth. It was not a powerful entity that could be counted on to withstand a civil war, particularly one that amassed casualties such as those at the Battle of Gettysburg.

“Now we are engaged in a great civil war, testing whether that nation or any nation so conceived and so dedicated can long endure.”

–The point is reiterated: can the U.S. survive the war? But Lincoln’s real question is about the precarious state of world affairs that the U.S. Civil War represented. The U.S. was founded as a nation dedicated to personal and political liberty. The Confederacy that fought the war was fighting for slavery, the opposite of personal and political liberty, and there seemed to be a real possibility that other nations, primarily England and France, would join the war on the Confederate side. If the U.S. lost the war, the only attempt at real democracy, personal liberty, and equality on Earth would be no more, and there might never be another. The U.S. had the best chance at making it work; if the U.S. failed, who else could succeed? The worst fears of the Founders and of all patriotic Americans were realized in this war, and in losses like the ones at Gettysburg.

“We are met on a great battlefield of that war. We have come to dedicate a portion of that field as a final resting-place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.”

–This was a recent battlefield. The bodies were cleared away, but the landscape was devastated by three days of cannon and gunfire. This drawing purports to show the start of the battle:

Gettysburg

The soldiers are in a field surrounded by trees. Here is a photo from the day of the Address:

Yes, it’s now November instead of July, but the ground being completely stripped of vegetation is not the result of the onset of winter, and the lack of a single tree speaks volumes about the ferocity of the battle. There is a tree stump taken from the battlefield at Spotsylvania on display at the Smithsonian Museum in Washington, DC that is all that’s left of a tall tree that was shot away to nothing by rifle fire during the fighting.

Gettysburg’s trees must have suffered the same fate. Under that stripped-bare ground many men from both sides were already hastily buried. There was a strong need on the part of the families of the dead, who could not travel to Pennsylvania to find and retrieve their bodies, to find some way to set this battlefield aside as sacred ground.

“But in a larger sense, we cannot dedicate, we cannot consecrate, we cannot hallow this ground. The brave men, living and dead who struggled here have consecrated it far above our poor power to add or detract. The world will little note nor long remember what we say here, but it can never forget what they did here.”

–You can make the battlefield into a cemetery, but that action is not what makes the field sacred. It is the unselfish sacrifice of the U.S. dead, who fought to keep democracy and liberty alive in the world, that makes the land sacred–not just the land of the cemetery, but all lands of the United States. They are buried now in the cemetery, but they will live forever in the memory of the nation.

“It is for us the living rather to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced.”

–The “unfinished work” the soldiers were doing is the work of keeping democracy alive as well as the nation.

“It is rather for us to be here dedicated to the great task remaining before us–that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion–“

—The last full measure of devotion” must be one of the most powerful ways to say “they gave their lives” ever conceived of. The U.S. soldiers buried here did not just die for a cause, they died because their faith in liberty was so devout that they put the life of their nation above their own lives.

“–that we here highly resolve that these dead shall not have died in vain, that this nation under God shall have a new birth of freedom, and that government of the people, by the people, for the people shall not perish from the earth.”

–We tend to think that the last phrase, “government of the people, by the people, for the people”, must have appeared somewhere before this, in the Constitution or some Revolutionary War speech. It’s surprising that it had not. This was Lincoln’s own description, and it is simple and powerful. This final statement in the Address is far from a gentle benediction. It is a steely resolve to continue the fighting, continue the bloodshed, allow more men to die, and to dedicate more cemeteries to the war dead in order to guarantee that the United States will not perish and take freedom along with it. We “highly resolve” to continue the work of this war, knowing that it will not be easy and success is not assured. We do that today, in 2020, and every day that our founding principles are on the line and in danger from a world in which liberty and justice for all are not sacred ideals.

Delivering this final line, the president sat down. People in the audience were surprised. They had expected a longer speech–something more along the lines of the “translation” we’ve just provided, something more didactic that pounded points home over and over, and expressed its patriotism in more familiar, jingoistic language. Some felt insulted, and the press reviews were mixed: The Chicago Times said “The cheek of every American must tingle with shame as he reads the silly flat and dishwattery [sic] remarks of the man who has to be pointed out as the President of the United States.” The local Harrisburg Patriot and Union said “…we pass over the silly remarks of the President: for the credit of the nation we are willing that the veil of oblivion shall be dropped over them and that they shall no more be repeated or thought of.”

Part of the problem was that the elder statesman of Massachusetts politics, Edward Everett, had spoken for over two hours in a much more conventional way before Lincoln. Technically, Everett was right to speak longer, as he was on the program to deliver an “oration” while the president was listed as giving only “dedicatory remarks”. It was an age of very long speeches, and the longer the speech, the more seriously the speaker was taken.

But there were many people who realized they had just heard an historic speech. We’ll close with the opinion of the reporter from the Providence Daily Journal who felt the same way we do today after he heard Lincoln speak: “We know not where to look for a more admirable speech than the brief one which the President made…. It is often said that the hardest thing in the world is to make a five minute speech. But could the most elaborate and splendid oration be more beautiful, more touching, more inspiring than those few words of the President?”

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Freedom of religion is not protected by the Constitution

Posted on May 4, 2020. Filed under: Bill of Rights, Politics, Truth v. Myth, U.S. Constitution | Tags: , , , , |

We’re rerunning this post in light of the many ministers in the U.S. who are disobeying the quarantines in place to stop the spread of the COVID-19 virus by holding religious services of more than 10 people–in some cases, many more.

One example may stand for many: in Los Angeles, Rodney Howard-Browne held a service in his Protestant Christian mega-church and, when arrested for showing “reckless disregard for human life… complained of ‘religious bigotry.’ The church maintains that the right to assemble in worship is a fundamental freedom that cannot be abridged even in an emergency, and cites early American religious dissidents, including Baptists and Quakers, as examples of the religious persecution that the nation’s founders would have found intolerable.”

This argument is so convoluted it takes time to disassemble. First, Howard-Browne and the many other Christian and Jewish religious leaders who have flouted the quarantine orders in the U.S. are actually applying the First Amendment correctly: as we explain in detail below, it protects the physical assembling of people to publicly worship in a building. This is rare. Most Americans believe that the FA protects religious belief (it does not, as we explain below).

But after that, the church’s argument goes off the rails. The right to physically assemble for worship can indeed be temporarily suspended to save lives during a pandemic. Forbidding public worship does not prevent people from practicing their religion. They may have to do it remotely, via Zoom, or privately at home, but they are still allowed to be Christian, Jewish, Muslim, or whatever religious identity they possess. No one is telling them that their religion itself is not allowed–just their religious assembly. Temporarily.

Referencing the Baptists and Quakers is meant to tie their 17th-century persecution to the megachurches’ situation, but the megachurches are not being persecuted, so it doesn’t hold.

Later in the article, this statement appears:

Legal experts say that while religious groups generally have wide latitude to worship under the 1st Amendment and state-by-state religious freedom laws, rules shutting down worship are legally sound if they apply across-the-board to all types of group meetings.

This is true. The FA protects gathering to worship, but temporary suspension of all religious assembly to help curb a pandemic is the kind of good sense the Founders practiced and would appreciate. It is a general ban, not one directed only at Christians, and to challenge it goes against biblical teaching, by Jesus and Paul in the New Testament, that Christians should obey the rules their governments create. Christians always forget that teaching when it doesn’t suit them, while remembering it with a vengeance when it does (when demanding that immigration laws be enforced, for instance).

Fighting a temporary ban that’s meant to save lives should not make one “proud to be persecuted for the faith like my savior,” as minister Tony Spell in Baton Rouge claimed. They’re not being persecuted for their faith. No one is preventing them from believing in Jesus. They are simply being asked to suspend in-person worship for three months. A strong faith should be able to withstand such a minor setback.

Here’s the original post:

 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

We all recognize this as the text of the First Amendment of the Constitution. Most of us put it into our own words as “the First Amendment protects freedom of religion.” But it does not. It protects freedom of worship, which is very different.

What the First Amendment does regarding religion is: first, it forbids our federal legislature from making any laws creating an official state religion; second, it forbids our federal legislature from preventing people from worshipping as they see fit. That’s what “free exercise” means—how you worship. Whether you go to a church, synagogue, mosque, or have a prayer room in your home, you are protected. If you wear a head covering like a yarmulke or turban as a form of worship, you are protected.

The First Amendment is all about physical forms of religious worship. It comes from a time when people would burn Catholic churches or refuse to let Jewish Americans build synagogues. It stops this, and stops schools from forbidding students to wear religious clothing.

It does not protect religion itself, or as we usually put it, religious belief. It does not protect anyone’s right to believe certain things. If one’s religion prohibits homosexuality or birth control, that is a belief, not a form of worship. Belief is not protected because belief is so amorphous. One could claim any crazy notion as a religious belief and demand that it be protected. We could say that our religion says women shouldn’t ride public transportation, or men should not be allowed to use public showers, or cats can’t be kept as pets, and we would have to be accommodated.

The Founders were wise enough not to get into religious belief. They just made a safe space for public and private physical worship.

We were glad to hear someone get this in a radio interview last week. The article starts badly, with the author saying

The question under current debate is what it means to “exercise” one’s religion.

If a football coach is not allowed to lead his team in a public prayer, or a high school valedictorian is not given permission to read a Bible passage for her graduation speech, or the owner of a private chapel is told he cannot refuse to accommodate a same-sex wedding, they might claim their religious freedom has been infringed.

The first two examples are clearly not worship. They are expressions of religious belief. Only the latter is worship, concerning what happens in a house of worship. The article continues:

One of the thorniest cases involves Catholic Charities, whose agencies long have provided adoption and foster care services to children in need, including orphans. Under Catholic doctrine, the sacrament of marriage is defined as the union of a man and a woman, and Catholic adoption agencies therefore have declined to place children with same-sex couples.

Again, doctrine is belief, not worship. Marriage being between a man and woman only is a belief, not a form of worship. Doctrine cannot be protected by our federal government. The article talks many times about “freedom of religion” clashing with “freedom from discrimination”, and that’s why: when you enforce belief, you enforce discrimination because belief can reach out beyond a religion to impact others while worship can’t. Put it this way: there’s no form of Catholic worship that impacts non-Catholics because non-Catholics aren’t in Catholic churches trying to worship. But there are forms of Catholic belief that impact non-Catholics, because non-Catholics will be impacted by them without ever setting foot in a church. Gay non-Catholics will be discriminated against by anti-gay Catholics if being anti-gay (a belief) is enshrined as a form of worship, and thus given protection by the First Amendment.

“Exercising” one’s religion means worship, plain and simple, and exclusively. It’s a literal word: you exercise (move)  yourself physically to do something to worship God.

So Charles Haynes, director of the Religious Freedom Center at the Newseum Institute in Washington, is completely wrong to say “We may not like the claim of conscience, but you know, we don’t judge claims of conscience on whether we like the content of the claim. We are trying to protect the right of people to do what they feel they must do according to their God. That is a very high value.”

Americans may have a “right” to do “what they feel they must do according to their God”, but only when it comes to forms of worship. One political charter, like the Constitution, could not possibly protect all “values” and all “feelings” about what is right, because they will naturally conflict. And the Constitution does not deal in feelings, but in political rights.

Now here’s where the article gets good:

…Bishop Michael Curry, leader of the Episcopal Church in the United States, said he has witnessed the persecution of Christians in other parts of the world and doesn’t see anything comparable in the United States.

“I’m not worried about my religious freedom,” Curry said. “I get up and go to church on Sunday morning, ain’t nobody stopping me. My freedom to worship is protected in this country, and that’s not going to get taken away. I have been in places where that’s been infringed. That’s not what we’re talking about.”

Curry’s reference only to “freedom to worship,” however, missed the point, according to some religious freedom advocates. They say they want the freedom to exercise their faith every day of the week, wherever they are — even if it means occasionally challenging the principle of absolute equality for all.

“We can’t use equality to just wipe out one of the [First Amendment] rights,” Carlson-Thies says, “or say you can have the right, as long as you just exercise it in church, but not out in life.”

Bishop Curry gets it! He realizes that “worship”—getting up and going to church and not being stopped—is what is protected. “My freedom to worship is protected in this country”; that is correct. We were really gratified to hear him say this.

Then to have his opponents say that having “only” freedom of worship isn’t good enough is very telling, because they come right out and say they want freedom of belief—if only for themselves. They want to “exercise their faith every day of the week”? They have that right in the Constitution. What they really want is to “challenge the principle of absolute equality for all”; that is, they only want freedom of belief for themselves. Anyone whose beliefs clash with theirs should be shut down.

To say as Carlson-Thies does, that “equality wipes out rights” would be laughable if it weren’t so dire an example of double-speak destroying our democracy. Equality is “rights”. They are one thing. Our guaranteed equal rights give us… well, equality. How can guaranteeing everyone’s equal rights destroy equality?

His final statement tells us the truth: he wants to get rid of freedom of worship (“in church”) and put in freedom of belief (“in life”). But only for himself, and his beliefs. All others that clash with his would have to be discriminated against.

We need more Currys in this country, who understand that no democratic government committed to equality of opportunity can protect freedom of belief because that is the opposite of democracy. It is anarchy. Beliefs will always clash. The federal government cannot uphold any one set of beliefs over another. If equality feels like oppression to some people, we need to help them resolve that struggle. That’s the American way.

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Does the president have total authority?

Posted on April 15, 2020. Filed under: Civil Rights, Politics, The Founders, Truth v. Myth | Tags: , , , , , , , , , |

We’re reposting this piece in response to President Trump’s recent claim that he wields “total authority” in his role: “When somebody’s the president of the United States, the authority is total. And that’s the way it’s got to be.” This specious claim was refuted almost immediately by the people you expect to see on TV–governors, Washington politicians, political experts, and academics.

But we sometimes fear that the average American begins to believe it–that a poisonous seed is planted in the American mind that in times of crisis, you need a dictator to force everyone to do the right thing, to take control and ensure that no one games the system. It’s a belief that begins as “you need might to do right” but, as human history teaches us, quickly and inevitably ends up as “might makes right.” Think of the cliche about Mussolini: he was a fascist, but the people loved him because “he made the trains run on time.”

When there’s so much friction and factionalism in Congress, people begin to yearn for a bulldozer to clear it all away, a Harry Truman-style “the buck stops here” leader who will tell people what to do, force them to do it, take credit or blame, and just get things moving again.

That’s the inherent problem in the general definition of leadership: that it’s an all-powerful person giving orders to obedient followers. It’s implied that the power is accompanied by wisdom.

But real leadership, as our Founders set us up to one day achieve, is not a Great Leader with an infallible Vision telling everyone else how to follow them. It’s a person who wants to make change mobilizing the talents and energy of other people to work with them to make change happen. It’s everyone sharing their ideas and everyone working equally hard to experiment, take chances, fail, learn, and try again. Incremental change, not Sweeping Edicts and Commands.

We don’t need a dictator. We have a government. It’s our government that makes Americans free. Unconvinced? It’s not surprising, after decades of “government is the problem” politicking. But read on, and we hope you are persuaded. That’s the incremental work we do here at the HP.

 

Danielle Allen, a professor at the Institute for Advanced Study in Princeton, NJ, has come to the conclusion that the most famous line in the Declaration of Independence, and perhaps in all American documentary history, is not what we think it is.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.”

That’s the way we learn it. But Allen has convincing evidence that in the original document there was no period after “happiness”, which means that first line should read like this:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness, that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”

In their regular waves of anti-government passion, which recur throughout our history, Americans often claim that the federal government in Washington interferes with our “life, liberty and pursuit of happiness”, and even that the federal government—or the bare concept of having a federal government—is at odds with Americans being able to pursue life, liberty, and happiness. But if the Declaration’s famous line has no period (as Allen seems to prove), then the only way Americans can pursue those rights given by God to all people is if they institute a government that derives its just powers from the consent of the governed.

This is how we have always seen it at the HP: what makes America great is not, as is so often suggested, “our freedoms”. It is the fair, representative, democratic government that makes those freedoms possible, that makes preserving those freedoms its first priority and understands them as its reason for being. Without a fair and free government, we cannot long maintain any national, political, or individual freedoms we currently possess. In our posts “What are the freedoms we have as Americans?” parts 1 and 2, we put it this way:

“Many Americans have come to see our individual freedoms as the wellspring from which national freedom is born, and thus individual freedoms are the most important. But these individual freedoms come from our government, from the Constitution, and last only as long as we have our national freedom. Without national freedom, there is no individual freedom, and national freedom only lasts as long as we have political freedom. Giving up our right to vote—for refusing or failing to vote is tantamount to giving up that right—is a dangerous step toward losing national and individual freedom. Once we stop demanding that our government really represent us, our democracy is crippled, and then the nation is open to outside threats. If individual freedoms are seen as separate from or at odds with national and political freedom, then we begin to prioritize our liberty to do whatever we want at the expense of national safety.

Individual freedom is really our freedom to live up to the founding principles of our nation. It’s our freedom to speak and worship and serve our country as we each see fit, and not really the freedom to be lazy and uninvolved and prioritizing our own choices over other people’s choices. It is the freedom to live together as one without having to be the same, not the freedom to push our own ways at the expense of everyone else’s.

Political freedom is our freedom to have a democracy, to be represented accurately in the federal government, and to preserve the individual freedoms we enjoy.

National freedom is the end result of the first two freedoms, because we who value our individual and political freedom will not allow our country to be destroyed by outside forces—or by those Americans who don’t believe in the full triad of freedoms.”

The idea that the Founders did not want us to have a strong government is ludicrous. Their whole aim in breaking away from Great Britain was to create a new kind of government—the government was the point, the goal, the prize, the crowning achievement of the United States. They would create a government that was democratic and representative, strong but flexible, responsive yet authoritative enough to enforce its laws (which would be written by popularly elected representatives of the people). Without that kind of government, there could be no guarantees of life, liberty, or happiness. As Jack Rakove of Stanford puts it in the New York Times article on Allen’s quest to remove the inaccurate period from the Declaration, “Are the parts [of the Declaration] about the importance of government part of one cumulative argument, or—as Americans have tended to read the document—subordinate to ‘life, liberty, and the pursuit of happiness’?”

It takes energy to maintain a fair and free government. Energy on the part of citizens. We are so often lacking that kind of energy, particularly in the new millennium. George Washington warned us in his Farewell Address that the greatest threat to American life, liberty, happiness, and the government that provides them all comes from within America itself:

“The unity of government which constitutes you one people is also now dear to you. It is justly so, for [the government] is a main pillar in the edifice of your real independence, the support of your tranquility at home, your peace abroad; of your safety; of your prosperity; of that very liberty which you so highly prize. But it is easy to foresee that, from different causes and from different quarters, much pains will be taken, many artifices employed to weaken in your minds the conviction of this truth; as this is the point in your political fortress against which the batteries of internal and external enemies will be most constantly and actively (though often covertly and insidiously) directed, it is of infinite moment that you should properly estimate the immense value of your national union to your collective and individual happiness; that you should cherish a cordial, habitual, and immovable attachment to it; accustoming yourselves to think and speak of it as of the palladium of your political safety and prosperity; watching for its preservation with jealous anxiety; discountenancing whatever may suggest even a suspicion that it can in any event be abandoned; and indignantly frowning upon the first dawning of every attempt to alienate any portion of our country from the rest, or to enfeeble the sacred ties which now link together the various parts.”

Washington urges us to love our democracy and our democratic government, and to remember that it is a painfully new kind of government, and there are going to be many people—outside the U.S. and even within it, your fellow citizens—who don’t believe it will really work. They will try to tear it down, and tell you you’re crazy to defend it. You’ve got to remember that being united under your unique government is your greatest treasure. Forget the things that make you different, like religion or customs and focus on what you have in common, what you share that no other people on earth share: a democratic government of the people, for the people, and by the people.

That’s why we are quick to believe there was no period after “happiness” in the original Declaration of Independence. The Founders knew that good, tireless government was the only safeguard of life, liberty, and happiness. As the Fourth of July approaches, we would do well to remind ourselves of that fact.

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Impeachment – let the people decide?

Posted on January 30, 2020. Filed under: Civil Rights, Politics, Truth v. Myth, U.S. Constitution, What History is For | Tags: , , , , |

Listening to the news on NPR yesterday, we heard this:

HOST: Without being named, what are the president’s defenders saying on the record?

REPORTER: You know, they are saying that this process was flawed, that the president did nothing wrong, that he was fully within the bounds of presidential power and that the articles fall short of any sort of constitutional standard for removal.

But the argument that they are making again and again that they made at the beginning and the end of their arguments before the Senate is that there is an election just nine months away, so why not let the people decide? That’s what Pat Cipollone, the White House counsel, said on the Senate floor:

PAT CIPOLLONE: What they are asking you to do is to throw out a successful president on the eve of an election with no basis and in violation of the Constitution. It would dangerously change our country and weaken – weaken – forever all of our democratic institutions. You all know that’s not in the interest of the American people. Why not trust the American people with this decision? Why tear up their ballots? Why tear up every ballot across this country? You can’t do that.

…remember our post on tyranny of the majority that we keep updating and re-posting every time gay rights are questioned? Hey, we’re posting it again!

Because what Mr. Cipollone suggests is that we bow to tyranny of the majority. He clearly says that if the majority of American voters want to elect a person who will violate our Constitution, we must let them do that. We must “trust them with that decision.” If voters don’t like violations of our Constitution, then they won’t vote for Trump again, and justice will be done.

But that’s not democracy and justice as we have established them in this country. If the majority of the people support injustice, there has to be a way to save the country from them–and there is. It’s called the judiciary, and, in this case, the impeachment process, which is a trial, and therefore overseen by the Chief Justice of our highest court.

If we concede that the majority of voting Americans want injustice (which we at the HP do not concede, but just for the sake of argument), we can’t just say “well, majority rules!” and let it be. The majority does not rule in the United States if they are attempting to institutionalize injustice. If the majority of Americans support a premise and practice that is unconstitutional, they are overruled. Because in the United States, our founding principles must be upheld, even if only by a minority.

In this moment, we must let an impeachment trial decide the matter, not the voters. Even if the majority of American voters went against Trump this fall, it would still be wrong to “let the voters decide.” Majority does not rule–the Constitution rules.

 

Here’s the original post, once again, ready to be fully applied to the validity of impeachment over election:

The California Supreme Court’s decision that banning gay marriage is unconstitutional has been met with the by-now common complaint that the Court overstepped its bounds, trampled the wishes of the voters, and got into the legislation business without a permit.

A review of the constitutionally described role of the judiciary is in order.

The famous commentator on American democracy, Alexis de Tocqueville, talked a great deal in his books Democracy in America about the tyranny of the majority. This is when majority rule—the basis of democracy—ends up perverting democracy by forcing injustice on the minority of the public.

For example, slavery was an example of the tyranny of the majority. Most Americans in the slave era were white and free. White and free people were the majority, and they used their majority power to keep slavery from being abolished by the minority of Americans who wanted to abolish it. The rights of black Americans were trampled by the tyranny of the majority.

Before Brown v. Board of Education in 1954, the majority of Americans were fine with segregated schools. They used their majority power to oppress the minority of Americans who were black, or who were white and wanted desegregation.

In each example, the majority is imposing and enforcing injustice which is incompatible with democracy. They are tyrannizing rather than governing.

The judiciary was created to break this grip of majority tyranny. The legislature—Congress—cannot usually break majority tyranny because it is made up of people popularly elected by the majority. But the appointed judiciary can break majority tyranny because its sole job is not to reflect the wishes of the people but to interpret the Constitution.

If the judiciary finds that a law made by the legislature perverts democracy and imposes the tyranny of the majority, it can and must strike that law down. This is what happened in California. The court found that although the majority of Californians (as evidenced by a previous referendum) had voted to ban gay marriage, that majority was enforcing and imposing injustice on the minority. So the court found the ban unconstitutional.

This is not beyond the scope of the judiciary, it’s exactly what it is meant to do.

We heard a commentator yesterday saying the California court should have left the issue to “the prerogative of the voters”. But if the voters’ prerogative is to oppress someone else, then the court does not simply step aside and let this happen.

The same people who rage against the partial and biased justices who lifted this ban are generally the same people who would celebrate justices who imposed a ban on abortion. People who cry out for impartiality are generally only applying it to cases they oppose.

So that’s what the judiciary does: it prevents the tyranny of the majority from enforcing injustice in a democracy. Like it or not, the “will of the people” is not always sacred, and sometimes must be opposed in the name of equality.

 

 

 

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